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HR or the FBI? Conducting a Reasonable Workplace Investigation

By: Rebecca Goldberg

When an employee complains about alleged wrongdoing at work, the Human Resources department (or anyone tasked with the function) is called upon to investigate and resolve the matter.  Sometimes there are video recordings of the misconduct; sometimes the matter boils down to the dreaded he-said/she-said.  This article outlines a few decisions employers must make when handling internal complaints.

#1: Will the Matter be Investigated?

In most cases, allegations of misconduct should be investigated unless the allegations are particularly trivial or unless the matter can be resolved informally, such as by a simple conversation between the employees.  Sometimes, employers decide not to investigate allegations because they were made against a high-ranking official and that high-ranking official knows the truth.  This mistake should be avoided.  In such cases, the failure to investigate may demonstrate a belief that the high-ranking official is “above the law” and the opportunity to resolve the matter internally may be squandered.

#2: Who Will Conduct the Investigation?

Investigations should be conducted by an impartial employee with training in performing workplace investigations.  Typically, this will be someone in the Human Resources department.

If the allegations are particularly egregious, the allegations involve high-ranking officials, the scope of the investigation would provide too much of a drain if conducted internally, or there is no impartial investigator with adequate training, it is appropriate to outsource the investigation, typically to a law firm.  In some cases, using a law firm to conduct the investigation will result in the investigation report being protected by attorney-client privilege, which may be helpful if litigation may result.

#3: What is the Investigation Timeline?

Unless there is a law or policy in place requiring the investigation to proceed along a particular timeline, the goal is generally to balance thoroughness with promptness.  When selecting the investigator, consider whether the investigator has the ability to deliver an outcome within an appropriate timeframe.  In many cases, the investigation process is delayed by vacations, medical leaves, inclement weather, and all manner of interruption.  Therefore, it is best to avoid promising a particular timeline, but to work with reasonable diligence.

In addition, it is important to reach out to the parties quickly to set expectations regarding when the investigation will begin and how it will progress.  Even if the investigation does not begin immediately, the parties should be contacted promptly.  Failure to be kept apprised of investigation status may contribute to further angst, which may, in turn, increase litigation risk.  If the matter will be investigated externally, arrange for the external investigator promptly to avoid compounding any delays.

HR is not the FBI and does not need to meet the same standards of proof as would be required to convict someone of a crime.  Therefore, in most cases, if someone provides a printout of an email, that is sufficient evidence unless the other party claims it is a forgery.  It is not necessary in most cases to obtain server information to prove an email was sent.  Keeping to reasonable standards of proof will allow the investigation to proceed in an appropriate timeframe.

#4: What is the Goal of the Process?

The goal of an investigation is usually to understand what the facts are in order to bring the matter to a resolution.  The resolution can be a restorative justice meeting, disciplinary action, termination, training, or any other appropriate response.  Generally, it is not appropriate to tell the complainant what action was taken (unless the complainant is directly involved), but the complainant should be told to report any further concerns, including any concerns of retaliation.  A designated member of management should reach out to the complainant periodically to ensure that the matter has been resolved.  Otherwise, further action may be needed.

There are many considerations that go into carrying out a good workplace investigation and there are many decision points along the way.  The labor and employment attorneys at Berchem Moses PC are experienced in conducting investigations in public-sector and private-sector workplaces, including unionized and non-unionized environments.  Please contact our attorneys if we can assist you in such matters.